Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment

Brief of Professor Seth B. Tillman & Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment, USA v. Trump, Case No. 9:23-cr-80101-AMC-BER (S.D. Fla. Mar. 2024) (filed by Professor Josh Blackman & Michael A. Sasso, Esq.), ECF No 410, 2024 WL 1214430

27 Pages Posted: 26 Apr 2024

See all articles by Seth Barrett Tillman

Seth Barrett Tillman

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law

Date Written: March 13, 2024

Abstract

Disputes about offices and officers generally result from two types of questions. First, there are procedural questions: how is the office created, how is a person appointed to that office, and how can the ofiicer's tenure be terminated? Second, there arc substantive questions: what is the scope of the officer's powers and what level of supervision or direction is the officer subject to? United States v. Trump implicates both aspects of Special Counsel Smith's role.

Procedurally, Special Counsel Smith's position was (purportedly) created by the Attorney General to resolve a particular controversy. See 28 C.F.R. § 600.1. And this Special Counsel position will cease to exist when that investigation is completed. 28 C.F.R. § 600.8(c). This ephemeral position's duties were and are only "temporary" rather than "continuing and permanent." Lucia v. SEC, 585 U.S. 237, 245 (2018) (citing United States v. Germaine, 99 U.S. 508, 511-12 (1879)). Furthermore, under longstanding and controlling precedent, a position that is not "continuous" is not an "office" at all. Id. At most, Smith's temporary position is properly characterized as a mere "employee." Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976). Special Counsel Smith does not hold an "office," and he is not an "Officer of the United States." To paraphrase Justice Scalia's Morrison dissent, this employee came as an employee.

Substantively, the regulations vest the Special Counsel with "the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney." 28 C.F.R. § 600.6. A United States attorney is considered an inferior "Officer of the United States." United States v. Hilario, 218 F.3d 19, 25 (1st Cir. 2000). However, a mere "employee" cannot exercise the broad prosecutorial powers of a United States attorney.

Both procedurally and substantively, the prosecutorial actions taken by Special Counsel Smith are ultra vires with respect to the Special Counsel Regulation. Likewise, Smith's exercising the powers of an "Officer of the United States" in his capacity as an employee of the United States violates the Supreme Court's Appointments Clause jurisprudence. While Smith's and his subordinate's past actions may be salvageable by the De Facto Officer Doctrine, his future actions can continue under the current regulations, if at all, only under the normal supervision of the politically accountable United States attorney for the Southern District of Florida.

Suggested Citation

Tillman, Seth Barrett, Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment (March 13, 2024). Brief of Professor Seth B. Tillman & Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment, USA v. Trump, Case No. 9:23-cr-80101-AMC-BER (S.D. Fla. Mar. 2024) (filed by Professor Josh Blackman & Michael A. Sasso, Esq.), ECF No 410, 2024 WL 1214430, Available at SSRN: https://ssrn.com/abstract=4755563 or http://dx.doi.org/10.2139/ssrn.4755563

Seth Barrett Tillman (Contact Author)

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law ( email )

Ollscoil na hÉireann, Má Nuad
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Ireland
(353) (0) 1474-7216 (Phone)

HOME PAGE: http://law.nuim.ie/staff/mr-seth-barrett-tillman

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